Last time we covered the state of the law – specifically the state of Almaraz/Guzman and the wiggle room given to evaluating physicians to increase the whole person impairment.   Is there nothing that can be done to curb the inflation of permanent disability?  As a matter of fact, there is.

Your typical Almaraz/Guzman medical report reads something like this:  “The applicant underwent a partial medial and lateral meniscectomy.  Utilizing Table 17-33, this is a 4% whole person impairment.  Taking into consideration the Almaraz/Guzman case, noting his symptoms, Table 15-6 should be used and I would assign him an additional 9% whole person impairment.”

The rating just went from an unadjusted $2,760.50 in permanent disability indemnity to an unadjusted $9,717.50.  Factoring in profession, age, etc. the ratings can go drastically up.  Often enough, these ratings are combined as expressly prohibited by the AMA Guides.  So what’s the solution?

Milpitas Unified School District v. WCAB (Guzman III) (2010) 187 Cal.App.4^th 808 pricks the ever-inflating whole person impairment balloon.  According to Guzman III, an evaluating physician can only deviate from the AMA Guides in “complex or extraordinary cases.”  These are cases that are “new or complex … or the range, evolution, and discovery of new medical conditions.”

In terms of actually performing an Almaraz/Guzman increase, simply invoking the name Almaraz/Guzman is not enough.  Guzman III holds that “[i]n order to support the case for rebuttal, the physician must be permitted to explain why departure from the impairment percentages is necessary and how he or she arrived at a different rating.”

In other words, when you’re faced with an Almaraz/Guzman rating, ask yourself the following questions:

1)      Did the evaluating physician describe a condition that is “complex or extraordinary,” and one that deals with a “new or complex case” dealing with the “range, evolution, and discovery of new medical conditions?”  If the answer is no, then the impairment rating as increased by the non-strict application of the guides is not substantial evidence.

2)      Did the evaluating physician “explain why departure from the impairment percentages is necessary?”  If Dr. Ouch! simply says it is based on his experience, then the portions of the report addressing Almaraz/Guzman increases are not substantial evidence.

If one, or both, of those questions is answered in the negative, then the report should proceed on strict AMA Guides ratings only.

This argument was used successfully in a recent unpublished panel decision, where the WCAB held that “the AME has not adequately explained his use of [the tables] for spinal impairment for station and gate disorders, where the Guide specifically states that gait derangement impairment is not to be combined with a Diagnosis Based Estimate method.”

The Almaraz/Guzman increase-happy report can be whittled down, and this is how you do it.

In the near future, I’ll discuss how you can use the arguments to permanently shave off the Almaraz/Guzman increases.  But that is a post for another time.  Good hunting!